The Good Reasons to Not Charge All Terrorists With Terrorism

The FBI announced yesterday that it is investigating the San Bernardino shooting as an act of terrorism. Following the Planned Parenthood shooting in Colorado Springs, San Bernardino is the second ideologically-motivated mass shooting in less than ten days. And inevitably, the predictable debate has begun over the proper application of the term “terrorism.” The same day as the San Bernardino attacks, abortion-rights groups stepped up efforts to define the Colorado Planned Parenthood shooting as domestic terrorism. And an opinion piece on Al Jazeera’s web site intimates that the government’s decision to label as terrorism San Bernardino but not Colorado Springs is a reflection of the racial and ideological bias of terrorism laws.

We seem to have this debate over nomenclature and the law every time mass violence occurs, and it raises real questions. But the debate lacks some crucial understanding about both the law and how we consider and discuss ideological violence.

There is a moral logic to what we experience as terrorism. There is also a legal logic to what the law categorizes as terrorism. The reason these questions are so confusing to our political culture is that the moral and legal logic don’t map onto one another all that precisely.

Under our instinctive moral logic, if you kill for political reasons, we consider that terrorism. But the legal elements underlying investigative and charging determinations are significantly more complicated than that. While ordinary language serves the moral logic discussion, legal logic—in the form of criminal statutes—requires specific, comprehensible language that sets forth the specific acts and mental states required for conviction. As a society, we tolerate many such moral-legal distinctions; we are able to accept, for example, that crimes collectively recognized as rape are sometimes prosecuted as lesser sexual assaults or even some other offense, because of the presence of absence of some specific legal element.

But for some reason, right now, our political culture is experiencing terrorism differently. A lot of people feel as though we are downgrading a crime when investigators decide, for example, that a horrific crime with many victims is merely a multiple murder or that—while terrorism descriptively—it is better to charge it as murder under state law.

So herein, a Guide for the Perplexed on how federal and state laws treat various perpetrators of ideologically-motivated violence, along with some reflections on whether there is an intolerable disconnect between our popular and legal definitions with respect to terrorism.

Painting with a somewhat broad brush, there are four general categories of violent extremists who might seek to commit or direct ideologically-motivated violence either in the United States or against a United States person abroad:

1. Foreign terrorist organizations or foreign powers located abroad (think of Al Qaeda attack plotting to put a bomber on an airplane heading into the United States or planning to send an operative into the country or attack an embassy abroad);

2. International terrorists located inside the United States who are inspired by and take direction from a foreign terrorist organization or foreign power;

3. Homegrown violent extremists who are inspired by, but do not take direction from, foreign terrorist organizations; and

4. Domestic terrorists who are not inspired by, and do not take direction from, a foreign terrorist organization or foreign power

As a general matter, the US criminal justice system investigates and charges persons in the first two categories under federal “terrorism” statutes. This is, in part, because the particular challenges created by a foreign nexus require the resources of the federal national security apparatus. For example, in order to address foreign terrorist organization activity outside the United States, 18 U.S.C. ch. 113B provides for extraterritorial jurisdiction when US nationals are the targets or victims of terrorism abroad. Section 2332 sets forth criminal penalties for homicide when an individual kills a US national outside the US and for both attempt and conspiracy with respect to homicide when the attempt or conspiracy to kill occurs outside the US, but it limits prosecutions under that title to those cases where the offense was “intended to coerce, intimidate, or retaliate against a government or civilian population.” In the recent Paris attacks, the statute provides a jurisdictional basis for FBI involvement in that investigation—an American victim—where one would otherwise not exist.

The logic here is simple: We don’t want to have a general federal murder statute, and the states are perfectly capable of prosecuting murders of American citizens within their borders, even those that are motivated by politics. So federal jurisdiction is limited to the killing of Americans outside of the jurisdiction of any state in circumstances which trigger some heightened interest on the part of the United States: political motivation and coercion.

A real foreign nexus tends to mute the debate over whether a given act domestically constitutes terrorism. The controversy tends to arise around the designation of US-based perpetrators and the perception that Muslims get disproportionately branded as terrorists, whereas we tend to think of white people who shoot up a large gathering under the rubric of mental health issues, hate crimes, or just plain old murder.

There is an element of truth to this as a matter of media vocabulary, and certainly there are those in right-wing corners of the media who are quick to call terrorism any act of violence perpetrated by someone from an Arab or Muslim country. And some of the same people can be slow to use words like terrorism to describe, say, politically-motivated murders at abortion clinics. It is also the case that Muslim populations have been disproportionately impacted by foreign-specific material support laws.

But the legal treatment of homegrown violent extremists and domestic terrorists depends substantially on the particulars of the case. And while the ideological motivation of the perpetrator is relevant, the most important element is whether the crime involves a bomb or a gun.

Domestic terrorism does not exist as a substantive offense under federal law. Whatever the government had decided to label the shooters in Colorado and California, they could not have been charged with “domestic terrorism.” There is no such crime.

The US Code does contemplate domestic terrorism as elements of other crimes and for the purpose of investigations. Domestic terrorism is defined for purposes of 18 U.S.C. ch. 133B at § 2331(5):

the term "domestic terrorism" means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States.

While not a standalone charge, domestic terrorism as defined in § 2331(5) does constitute an element of other offenses. See, for example, 18 U.S.C. § 226, Bribery affecting port security. It also is referenced in civil and administrative aspects of the US Code.

But what’s really at stake in the label—as we saw this week with the San Bernadino case—is the authority of the federal government to investigate the crime. The most consequential citation to the § 2331(5) domestic terrorism definition is in the Attorney General Guidelines for Domestic FBI Operations which authorizes the FBI to conduct “enterprise investigations” for the purpose of establishing the factual basis that reasonably indicates a group has or intends to commit an act of “domestic terrorism as defined in 18 U.S.C. § 2331(5) involving a violation of federal criminal law”:

Enterprise investigations are a type of full investigation[]. Hence, they are subject to the purpose, approval, and predication requirements that apply to full investigations, and all lawful methods may be used in carrying them out. The distinctive characteristic of enterprise investigations is that they concern groups or organizations that may be involved in the most serious criminal or national security threats to the public--generally, patterns of racketeering activity, terrorism or other threats to the national security, or the commission of offenses characteristically involved in terrorism as described in 18 U.S.C. 2332b(g)(5)(B). A broad examination of the characteristics of groups satisfying these criteria is authorized in enterprise investigations, including any relationship of the group to a foreign power, its size and composition, its geographic dimensions and finances, its past acts and goals, and its capacity for harm.

As a consequence, labeling an act one of “domestic terrorism” is most important in the context of investigations, and not ultimately indictments.

Let’s turn now to the FBI’s decisions this week about the two most recent mass shootings. It indicated that it is investigating the San Bernardino shooting as a potential act of terrorism. It declined, however, last week to categorize the Planned Parenthood shooting as a domestic terrorism investigation. This is not a moral comment on the perpetrators’ motivation in either case. And while it does rub people as reflecting a double standard of some kind, it actually makes perfect legal sense in both cases.

In the context of the Planned Parenthood shooting, the FBI is already authorized to undertake a predicated investigation employing all legal authorities. The basis for federal investigations arises, among other laws, from the Freedom of Access to Clinic Entrances (FACE) Act, which makes it a federal offense to “injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” Here, there is no apparent evidence that the perpetrator was acting as part of a larger group, and thus no need for the federal government to pursue an enterprise investigation. In terms of establishing federal authority, labeling the shooter a domestic terrorist makes no difference. There is, moreover, no indication the FBI intends to assert primary jurisdiction over the case, which is being investigated and prosecuted by Colorado authorities. The point is merely that, whatever its aim, the federal government gains no meaningful authority by designating the act domestic terrorism.

Information is still developing regarding San Bernardino, including alleged contact to ISIS. But in this case, an early determination to investigate the matter as possible terrorism—international or domestic—dramatically alters federal authority. The designation enables the FBI to undertake an enterprise investigation into any groups or networks with which Syed Farook and Tashfeen Malik may have associated.

The determination to designate San Bernardino, and not Colorado, as terrorism in the early phases of the investigation is not to attach the severity associated with the ordinary use of the term “terrorism” to one crime over another. Rather, the decision flows from different facts and serves to assert the appropriate degree of federal jurisdiction and to properly scope the investigation.

Prosecuting Ideologically-Motivated Mass Shootings

Murder is presumptively a state offense. Congress has decided that under certain circumstances, however, the crime warrants federal prosecution. Those circumstances include international and transnational terrorism. Where there is a substantial foreign connection—as with foreign terrorist organizations abroad and terrorists who act under their direction within the United States—the states lack adequate legal remedies and investigative resources, and the acts connect with larger foreign policy and military concerns that are exclusively the province of federal government.

Where the foreign connection is more tenuous—and the need for federal extraterritorial jurisdiction less necessary—the law tends to distinguish based on the manner in which the crime is perpetrated. Congress has enacted “terrorism” provisions to prosecute those who use bombs (misnamed in the law “weapons of mass destruction”); who attack government facilities, public transportation or infrastructure facilities; use (or threaten to use) a missile against an aircraft; or who use radiological or nuclear materials. Short of any of these situations, the case is likely to be—whatever its motivation—prosecuted as simple murder by the state in which it takes place.

Rightly or wrongly, mass shootings are notably absent from the federal statute. This reflects several factors. States have no lack of capacity to investigate shootings, no lack of authorities to prosecute them, and mass shooters have tended to be very local in the past. Bombers tend to be more organized in interstate groups. Whether the judgment is right or wrong, it means that in cases of mass shootings, the foreign nexus becomes critical to establish federal jurisdiction for prosecutorial purposes.

The law on this point does present the potential for significantly disparate treatment based on ideology. A homegrown violent extremist who is inspired by a foreign terrorist organization can be prosecuted for acts of terrorism “transcending national boundaries.” Section 2332b does not require that “conduct transcending national boundaries” include any actual contact with or direction from foreign terrorist organizations. But a purely domestic terrorist with a purely domestic political agenda clearly does not engage in conduct that “transcends national boundaries.” Therefore, in theory, Person A who shoots up a clinic based on a radicalized anti-abortion viewpoint would not be charged with a terrorism offense but with local murders, while Person B, who shoots up some other public place based on a radicalized viewpoint inspired by a foreign terrorist organization, could be charged federally as a terrorist. Under this hypothetical, the only differences between persons A and B exist entirely in their own minds.

But this hypothetical does not reflect what we have actually seen in practice. By and large, violent extremists of all stripes who use bombs are prosecuted as terrorists, while violent extremists of all stripes who use guns get prosecuted as simple murderers. Consider Nidal Hassan, the Fort Hood shooter who professed an agenda of radical Islam, yet was prosecuted by the military for simple murder. Despite overwhelming calls to categorize the act as terrorism, the Pentagon treated it as an act of workplace violence. Shortly before the Fort Hood shooting in 2009, Abdulhakim Mujahid Muhammad killed two soldiers in front of a Little Rock, Arkansas recruiting station. Following the shooting, Muhammad expressed to investigators allegiance to al Qaeda in the Arabian Peninsula. Yet he was prosecuted by the state of Arkansas and ultimately pled guilty to capital murder charges, not terrorism. The most dramatic example may be that of Mir Aimal Kasi who, in 1993, shot two CIA employees dead outside the agency’s entrance in Langley, Virginia. Kasi’s stated motive was anger over the US treatment of people in the Middle East, particularly Palestinians. He fled to Pakistan, and following a four-year international manhunt and joint CIA-FBI capture operation in Pakistan, he was rendered back to the United States. How was he charged? Not with terrorism. Kasi was convicted by the state of Virginia on capital murder charges and executed in 2002.

Muhammad Abdulazeez, who killed five servicemen in Chatanooga, was killed by police, so we don’t know what ultimate charges would have been against him or in what jurisdiction. But it is a reasonable guess that he would have been treated like other extremists who use guns—those references above, as well as Charleston shooter Dylan Roof and Colorado killer Robert Dear—and likely would have faced state murder charges, not federal terrorism charges.

In San Bernardino, Syed Farook and Tashfeen Malik are dead as well. If there had been a different outcome, they may well have faced charges of international terrorism, considering the reports of ISIS connections and the couple’s use of undetonated pipe bombs and other explosives. But, as discussed above, the early determination to treat it as an act of international or domestic terrorism for purposes of investigation was a rational choice under the law that does not prejudge later charging decisions. That decision rests on facts that go well beyond a knee-jerk impulse to categorize Muslim violence as terrorism.

Civil Liberties and the Status Quo

Why not treat all politically-motivated violence the same way? The answer is that the civil liberties consequences of doing so could be profound.

Enacting a general domestic terrorism statute would dramatically expand federal authority vis a vis the states with respect to many relatively routine murders for which state authority is entirely adequate. Proponents of creating domestic terrorism charges for abortion clinic violence approvingly note that designating an act as terrorism will both heighten social stigma and draw upon the resources and expertise of the national security community (namely DOJ’s NSD and specialized units within the FBI). But the US national security apparatus is fundamentally designed to look outside our borders and to turn inward only when a foreign threat has washed ashore. The complex legal obligations generated by incidental or intentional focus on US persons reflects the heightened privacy and civil liberties concerns at stake when we use foreign intelligence tools domestically. And rightly so, as the process of investigating and prosecuting domestic terrorists and homegrown violent extremists risks infringing into areas of constitutionally protected speech, religion, and association. To create a substantive domestic terrorism offense that always triggers federal authority—with corresponding offenses of material support and attempt—risks toppling a carefully calculated balance.

The law as it stands is neither arbitrary nor irrational. Surely, we are capable of understanding that the moral logic which guides our instinctive judgment that a person who shoots up a place for political reasons is a terrorist can coexist with a legal logic in which not all acts that we would call terroristic get investigated or prosecuted as, legally speaking, acts of terrorism. There is a spectrum here. The more international, foreign-directed, organized, bomb-based, and directed against transportation, infrastructure, or government facilities an act is, the more likely it will be investigated and charged as terrorism. The more domestic, solitary, and gun-based an act is, the more likely it will be prosecuted under murder statutes and the less likely is federal jurisdiction over the investigation.

The simple reality is that, oftentimes, the most powerful domestic terrorism law is a simple state murder charge, both in punishment and in the expression that the killer is no different than an ordinary criminal.

Susan Hennessey is the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She is a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.